RAJKUMAR KISHANCHAND PAHUJA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this writ petition the order of detention issued by the Government of Maharashtra on 27th of May, 1985 detaining one Nandlal Kishanchand Pahuja under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) with a view to preventing him from dealing in smuggled goods otherwise than by engaging in transporting, concealing, keeping smuggled goods, is challenged on various grounds.

(2.) Shri Canteenwalla the learned Counsel appearing for the petitioner contended before us that the order is vitiated by total non-application of mind. According to him, from the ground of detention, it is quite clear that it is based on seizure of gold from the detenu, which was in melting process weighing 360.950 grammes valued at Rs. 73,984.50, for which the detenu could not account. From the material placed before the Detaining Authority, it is quite clear that the gold, which was in melting process, was only 187,500 grammes and this was the gold which could be termed as contraband. Other gold was irrelevant for arriving at the satisfaction under section 3(1) of the COFEPOSA Act. He also contended that the seizure of the gold from one Panwalla Bhaiya or the seizure of the cash of Rs. 9700/- from Rajnikant Vyas was wholly irrelevant for the purpose of detention under the COFEPOSA Act. He then contended that though a specific averment is made in para 6 of the ground of detention that the detenu had not accounted for the gold in the register and all 3 books produced show that after the last entry in the said book, he had put his signature, copies of the said entries were not supplied to the detenu though relied upon. He also contended that the assay report was necessary in this particular case before arriving at the satisfaction. This contention of Shri Canteenwalla was based on the peculiar facts of this case. According to him out of 360 grams of gold seized, only about 187 grams was relevant for the purpose of detention. It is not known what was the purity of the gold after melting with the other gold. In the application of retraction the detenu has stated in specific terms that what was seized from him was not the gold of foreign origin. This retraction is rejected by the Detaining Authority without ascertaining from the analysers as to whether the gold seized was foreign origin gold or not. Therefore, unless there was assay report before the Detaining Authority, he could not have rejected the retraction of the detenu from his confessional statement. He then contended that the Hindi version of the order of detention is wholly bad and the grounds in the Hindi translation are entirely reversed to what has been stated in the original English version of the order of detention.

(3.) On the other hand, it is contended by Shri Vakil, the learned Counsel, appearing for the respondents, that the grounds of detention should be read as a whole, so also the affidavit filed in reply. Only because there is a minor mistake while mentioning the weightage of the contraband gold. It will not vitiate the order of detention nor it will show non-application of mind. According to him the entire gold does not form basis of detention order. The order of detention is based on only 187,500 grams of contraband gold found in the oven. The other gold seized from the detenu was not considered while issuing the order of detention. So far as the Hindi version of the order of detention is concerned. Shri Vakil states that there is no inaccuracy, and assuming that there is a minor mistake, it does not change the colour of the order of detention. He then states that the order of detention is based on single and solitary incident and while passing the order of detention, the antecedents of the detenu were taken into consideration. The register or books of accounts in which the seized gold was not accounted for, is neither referred to nor relied upon in the grounds of detention. Only passing reference is made to the said fact and, therefore the order of detention issued is perfectly legal and valid.